Monthly Archives: April 2008

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The final programme for this Thursday’s Post Graduate Conference in Criminal Justice and Human Rights is below. There are a limited number of places remaining – if you wish to book your attendance at the conference please contact the organising committee by emailing a.d.odonovan@student.ucc.iepromptly!!

EilionÃ³ir Flynn, U.C.C.:Community Visitors, Invisible Livesâ€¦The Forgotten Recommendation of the Goodbody Report on Developing an Advocacy Service for People with Disabilities.

Panel C: Contemporary Challenges in Constitutional and Administrative Law.Chair: Dr. Conor Oâ€™Mahony. ORB 156.Darren Oâ€™Donovan, U.C.C.:The Legal Protection of the Cultural Identity of Travellers: the Role of the ECHR in Remedying the Deficiencies of the Irish Constitution.

Eoin Daly, U.C.C.:Religious Discrimination in Public Education: Tensions between Religious Freedom and Religious Equality within a Non-Secular Constitutional Framework.

Paul Daly, University of Cambridge:Judicial Review and the Political Question Doctrine.

Todayâ€™s lead story in the New York Times reveals how the US Justice Departmentâ€™s legal advice to CIA agents on acceptable interrogation techniques was worded following the Supreme Courtâ€™s decision in Hamdan (2006) that Common Article 3 of the Geneva Conventions applies to GuantÃ¡namo Bay detainees. According to the story:

The Justice Department has told Congress that American intelligence operatives attempting to thwart terrorist attacks can legally use interrogation methods that might otherwise be prohibited under international law.

The legal interpretation, outlined in recent letters, sheds new light on the still-secret rules for interrogations by the Central Intelligence Agency. It shows that the administration is arguing that the boundaries for interrogations should be subject to some latitude, even under an executive order issued last summer that President Bush said meant that the C.I.A. would comply with international strictures against harsh treatment of detainees.

While the Geneva Conventions prohibit â€œoutrages upon personal dignity,â€ a letter sent by the Justice Department to Congress on March 5 makes clear that the administration has not drawn a precise line in deciding which interrogation methods would violate that standard, and is reserving the right to make case-by-case judgments.

â€¦.

The legal reasoning included in the latest Justice Department letters is less expansive than what department lawyers offered as recently as 2005 in defending the use of aggressive techniques. But they show that the Bush administration lawyers are citing the sometimes vague language of the Geneva Conventions to support the idea that interrogators should not be bound by ironclad rules.

The article is a (short) must-read for all those who are interested in the role that law and lawyers have played in the attempts by the United States to reshape international legal standards since 9/11. It also ties in nicely with the papers presented at last Wednesdayâ€™s CCJHR seminar entitled â€˜How the US Can Lose the War on Terrorâ€™ (delivered by John D. Hutson) at which the discussion paper, which I presented, was about lawyersâ€™ complicity. The seminar will soon be available for viewing on UCC Faculty of Lawâ€™s video archive, and my discussion paper can be accessed here.

As discussed previously, the LL.M Criminal Justice in University College Cork is currently receiving applications. The closing date for applications is 1 May 2008 and all interested parties are advised to apply within the recommended time frame.

The LL.M in Criminal Justice is an innovative, clinical Masters degree that makes the most of the vibrant atmosphere of graduate study here in UCC, the research conducted in the CCJHR, the excellent adjunct professors appointed to the Faculty including Hon. Justice Paul Carney (presiding judge of the Central Criminal Court), and the exceptional civil society and government links developed by the Faculty of Law. Overseen by LL.M Director Dr. Mary Donnelly and Clinical Legal Education Coordinator Gerard Murphy BL, this LL.M is in exceptionally high demand and entry is competitive.

The LL.M attracts an excellent mix of applicants such as law enforcement officials, NGO officers, people who have just completed a primary law degree, aspiring practitioners and academics, and members of the judiciary. Graduates of the programme go on to work in diverse fields, for example graduates are currently working in practice at the Bar or as a solicitor, in the academy, in government offices such as that of the Director of Public Prosecutions, and in law reform (some graduate profiles are available here).

Anyone with a query relating to the course ought to contact Gerard Murphy (g.murphy[at]ucc.ie)

The High Court yesterday handed down judgment in a case involving a man who had donated sperm to a lesbian couple on foot of an agreement between them that, while he was to have â€˜favoured uncleâ€™ status, he was not to be involved in parenting in any way. Once the baby was born the donor attempted to play a parental role, including by acquiring an injunction to prevent the couple and their child from travelling to Australia for a year. Yesterday Mr Justice John Hedigan held that the man has misled the couple as to his true intentions and had nothing more than a biological connection with the child; the child and his mothers, on the other hand, could be said to constitute a family within the meaning of Article 8, ECHR. Justice Hedigan recommended legislative action in relation to same-sex couples in Ireland including provisions relating to situations where a couple may wish to parent and for one of them to bear a child. The judgment appears not yet to be available online, but the RTE News report is here.

The judgment is significant not only because of its timing (the heads of a proposed Civil Unions Bill are expected to be released shortly), but also because Justice Hediganâ€™s holding that the couple and their child could enjoy the right to family life under Article 8 is an advancement of the ECtHRâ€™s own jurisprudence on whether same-sex couples with or without children can be regarded as â€˜familyâ€™ under Article 8.

The Strasbourg court has not yet definitively considered whether a same-sex cohabiting couple constitutes a unit entitled to respect for their family life under Article 8 (although in cases such as Karner v Austria(2003) it has protected same-sex couples under the rubric of privacy). In an earlier decision of the Commission it was held that the relationship between two women and the child of one of them did not constitute family life. In this case, Kerkhoven & Hinkle v Netherlands (1992) the Commission noted that there was no legal impediment to the three living together in the Netherlands but acknowledged that the difficulty lay in the non-biological parent establishing legal links with the child. The Commission acknowledged that such a legal relationship would have important practical implications for the child and non-biological parent, however they felt that the fact that the relationship between the two women did not constitute family life meant that there was no obligation on the state to allow the establishment of such a legal relationship. As Kerkhoven was a Commission decision, as opposed to a decision of the Court, the reasoning is not greatly elaborated upon. In fact little or no justification is offered by the Commission for this conclusion.

Kerkhoven again arose for consideration, however, within the context of X, Y & Z v United Kingdom(1997). This case concerned a family unit comprising a woman, her biological child and a post-operative female-to-male transsexual. The couple had been together since 1979 (just before his gender realignment surgery) and the child was born in 1995 (after the gender-realignment surgery). The child had been born by means of artificial insemination which, after some substantial effort on the part of the couple, had been provided and funded by the National Health Service. X had attempted to be registered as the father of the child on his birth certificate but was informed that only a â€œbiological manâ€ could be so registered. This application claimed that this decision was a breach of the unitâ€™s right to family life, particularly given the practical benefits of such legal recognition of the relationship between X and the child (whose birth certificate was left blank under â€˜fatherâ€™). The Government first claimed that no family life existed between the couple as they were to be regarded as two women living together. The Court considered that X and Y could not be considered as two women living together as they lived, socially, as man and woman and, as a result, apart from the legal prohibition on marrying their relationship was indistinguishable from that between a man and a woman. In the circumstances, and in particular with regard to Xâ€™s involvement in the AID process from the beginning and the close and de facto personal ties enjoyed between the three applicants, the Court found that they could be regarded as a unit deserving of protection for their family life. Significantly the Court did not substantially revisit Kerkhoven in this decision, rather it focused on the three together and the social reality of the relationship between the couple. In the end the Court held that there had been no violation of Article 8 by precluding the registration of X as father on he birth certificate because of the transitional stage of the law, the lack of a sophisticated personal identity register system in the UK and the relative unimportance of a birth certificate in legal terms.

These decisions, however, took place against a very different politico-legal background to the one currently in existence in the Council of Europe â€“ nowadays a great number of COE states have some kind of legislative framework concerning the rights of same-sex couples and, in some cases, any children they may be raising and the visibility of same-sex families and â€˜gay parentingâ€™ is much increased. In addition, the European Court of Justice (EU) has recently expanded the recognition of same-sex couples, including in the context of pension entitlements, where the partners â€œlive in a union of mutual support and assistance which is formally constituted for lifeâ€ (Maruko, 1 April 2008). Taking into account the margin of appreciation and the importance in ECHR jurisprudence of the emergence of â€˜consensusâ€™ across much of the COE member states, the conclusion that appears to have been reached by Justice Hedigan yesterday would likely now be reached by the Strasbourg Court in an analogous current case.

The event will take place in the Council Room, North Wing, The Quad at 6pm and all are welcome. Further details are available here

Dean Hutson has been an outspoken critic of the treatment of detainees at Guantanamo Bay and of US policies on the â€˜war on terrorâ€™. In 2004, Hutson and seven other retired officers wrote an open letter to President Bush expressing their concern over the number of allegations of abuse of prisoners in U.S. military custody. In 2005, Dean Hutson, along with Yale Law School dean Harold Koh, testified before the U.S. Senate Judiciary Committee in opposition to the appointment of Alberto Gonzales as attorney general of the United States, because of his alleged role in attempting to provide legal guidance to the U.S. military justifying abusive interrogation practices. Hutson has also testified before the Senate Armed Services Personnel Subcommittee, offering his opinion on the detention of “unlawful combatants”. Hutson was one of a number of lawyers and retired navy officers interviewed for the HBO Documentary, â€˜The Ghosts of Abu Ghraibâ€™.

Fiona de Londras is a College Lecturer in the Faculty of Law and specialises on the detention of suspected terrorists in the ‘War on Terrorism’. Her particular research interest relates to the behaviour of domestic and international human rights law in this context. She has published widely on the legal implications of the ‘War on Terrorism’ and, particularly, the US’ policy in GuantÃ¡namo Bay.

This blog post was submitted by PhD candidate and Government of Ireland Scholar PÃ¡draig McAuliffe, who is reading for a PhD entitled The Serious Crimes Process of East Timor in the Field of Human Rights Law under the supervision of CCJHR Co-Director, Dr. SiobhÃ¡n Mullally.

In the wake of the recent elections, the question on many lips is when or if Zimbabwean President Robert Mugabe will ever voluntarily give up power in the erstwhile breadbasket of Africa. The close nature of the campaign and the failure of a significant portion of the state apparatus to acquiesce in the transparent tampering with the election suggest Mugabeâ€™s control is more tenuous than was previously the case and may be, in nautical parlance, holed beneath the water-line. He is far from sunk, however and remains very much the captain of this listing vessel. Mutiny remains unlikely to be successful. If a maritime lexicon is to be indulged one more time, it is clear the tide has turned. The most relevant question Zimbabwe-watchers might ask is not whether the octogenarian Mugabe is willing to give up power, but whether he is afraid to.

Many people, the author included, were heartened when international pressure led to the extradition of Charles Taylor, the Liberian dictator who subjected his own people and those of Sierra Leone to a decade of brutal internecine conflict to the Netherlands. It represented an all-too-rare service by the Bush administration (who pressured the Nigerian Govt to give him up) to the international community and international justice (though cynics, the author once more included, suspect they would do anything to boost these ad hoc, localized organs at the expense of the ICC, but thatâ€™s a rant for another day). What we may now be experiencing is the flip-side of this decision â€“ that the Mugabes and Kabilas of this world will only leave their posts in a coffin for fear of arrest and extradition to trial by the very imperialists they have railed against for decades. Former ZANU-PF strongman Edgar Tekere was reported to have told a meeting in January that President Robert Mugabe was afraid of stepping down because he would be tried for his crimes, especially the massacres in Matabeleland in the 1980s. â€œMugabe is afraid of his crimes. If he leaves office we will have another Charles Taylor incident. So when Mugabe sits down and thinks of Gukurahundi, he wonâ€™t step down.â€

International criminal justice is often justified on the basis of its deterrent effect – criminals will refrain from committing criminal acts, even where they desire to commit them and retain the capacity to do so, out of fear of judicial punishment. Even leaving aside the obvious flaws in the theory (most mass criminals initially presume their cause will win out and that they will never be held to account, or reason that in defeat, they will not be apprehended),the opposite may now be happening â€“ leaders who might otherwise retire due to old age or unpopularity are now deterred from quitting their bloody reigns by the spectre of the ICC. Once more, the world must ask how willing it is to prioritise the vindication of human rights through retrospective prosecutions over the prospective realisation under a successor regime

The list of blogging peers does not include any judicial members (and for obvious reasons, it seems, will not in the future) but nevertheless is an interesting venture. It will be particularly fascinating to see whether the peers begin to discuss legislative controversies on the blog – especially since comments are open and there is already a tendance towards lively discussion on some issues.

The blog itself states that “The aim of the blog is to help educate, raise awareness and engage with the public on a range of issues relating to the role and business of the House of Lords” and makes it clear that this is, in essence, an experiment. The Hansard Society, we are told, will evaluate the blog in time including its scope and reach, in order evaluate whether it is a valuable exercise.

While we have some blogging politicians in Ireland (most notably Ciaran Cuffe TD) it seems that we are quite some distance from a move as technologically progressive as this. However the birth of Lords of the Blog does appear to be an interesting way to make the public more involved in parliamentary discussion/communicate the views of the public to the upper parliamentary house whose members would not normally have a constituency role comparable to that of members of the lower house. It’s certainly a development worth keeping an eye on.

The applicant was considered to pose risks to national security in the United Kingdom. He claimed that his right to be free from torture, inhuman and degrading treatment and punishment under both the ECHR and the Human Rights Act 1998 would be violated by the deportation as he faced a substantial risk of such treatment on return to Libya, and that the memorandum of understanding provided was not sufficient to discharge the United Kingdomâ€™s positive obligations under Article 3, ECHR (on which see, esp., Soering and Chahal).

Drawing very heavily on the European Court of Human Rightâ€™s recent decision in Saadi v Italy (previously discussed on the CCJHR blog here), the Court of Appeal held that the test to be applied when considering whether deportation would constitute a human rights violation was as laid down in Saadi as follows:

Furthermore, the Court has frequently indicated that it applies rigorous criteria and exercises close scrutiny when assessing the existence of a real risk of ill-treatment … in the event of a person being removed from the territory of the respondent State by extradition, expulsion or any other measure pursuing that aim. Although assessment of that risk is to some degree speculative, the Court has always been very cautious, examining carefully the material placed before it in the light of the requisite standard of proof (see paragraphs 128 and 132 above) before indicating an interim measure under Rule 39 or finding that the enforcement of removal from the territory would be contrary to Article 3 of the Convention. As a result, since adopting the Chahal judgment it has only rarely reached such a conclusion. (paragraph 142)

The Secretary of State for the Home Department conceded that this test would have been satisfied beyond doubt in this case were it not for the fact that a Memorandum of Understanding (i.e. diplomatic assurances) had been concluded between the UK and Libya. This memorandum, the respondent claimed, was sufficient to discharge the UKâ€™s duty of non-refoulement under Article 3 ECHR.

In this respect the Court of Appeal held that the sufficiency of any memorandum must be decided on a case-by-case basis (paragraph 75). Although the Court did not, perhaps, articulate the principles of assessing the sufficiency of particular memoranda of understanding as clearly as it might have done, it did clearly state that in assessing whether Article 3 is satisfied it is important to consider the reality on the ground in the receiving country and the extent to which â€“ taking into account the unpredictability of the future â€“ it is likely that treatment violating Article 3 might take place notwithstanding the memorandum of understanding.

Whether this decision will be appealed to the House of Lords remains to be seen, but as the judgment is substantively based on Saadi it seems unlikely that the Law Lords would reverse. In essence, then, the judgment outlines three principles:

The protections of Article 3, ECHR are absolute and remain absolute notwithstanding the alleged misbehaviour/terrorist status/national security risk posed by the individual(s) concerned;

In assessing whether deportation would constitute a violation of Article 3 a Court must consider whether there is â€œa real risk of ill-treatmentâ€, taking into account all of the evidence before it and the necessarily speculative nature of the exercise;

A Memorandum of Understanding/diplomatic assurance can, in principle, be sufficient to ensure compliance with Article 3, but the mere existence of such a memorandum is not sufficient in and of itself. Rather, the court must be satisfied that the situation in the proposed receiving state is such that the memorandum will be effective in protecting the individual from behaviour that violates Article 3.

The second annual postgraduate conference on criminal justice and human rights will take place here in the Centre for Criminal Justice and Human Rights on 1 May 2008. The papers are drawn from postgraduate students in Ireland, the UK, the US and Singapore and offer a very broad range of perspectives on criminal justice, human rights, and the interaction between the two. All interested parties are welcome to attend, although you ought to register on or before the 25th of April 2008, using the registration form that can be found here.

The keynote address is entitled The Future of UN Human Rights Treaty Monitoring and will be presented by Professor Michael Oâ€™Flaherty of the University of Nottingham and the (UN) Human Rights Committee. The conference will also feature an after-lunch presentation by UCC Law’s Professor Steve Hedley entitled “Finding Employment and Getting Published”, which should be of interest to all aspiring academics.

As in 2007, the conference is supported by Clarus Press. Full details of the conference, including the full programme, are available here.

Ombudsman for Children, Emily Logan began by giving a brief background to her Office. It has been in operation for three years and began with fifteen staff and a small budget of â‚¬280,000. The Office has so far received 1700 complaints from children. Children were involved from the very establishment of the office. A constant theme that ran throughout Loganâ€™s address is that the voice of the child is all important. Article 12 of the UN Convention on the Rights of the Child addresses this issue; the child has a right to form their own views and to be heard.

In Ombudsman Loganâ€™s experience children attach a great weight to being heard during decisions that may affect them. Many complaints to the Office have come from children who have been subject to administrative decisions with the decision makers underestimating the effect of such decisions on the child. There is a consistent denial of the right to participate in decisions and Ombudsman Logan expressly mentioned the issue of family separation. Other complaints from children involve children in the care of the state. Children are often troubled by their lack of access to siblings when they are in care. Logan pointed out that decision makers often claim to have carried out a comprehensive examination of a particular situation but may not in fact ascertain what the child thinks should happen. Logan also highlighted the recent criticism of teachers about studentâ€™s behaviour in class. Their complaints are about very minor disruption and Logan expressed her disappointment about this.

She then presented a series of pictures on power point to reveal a number of findings. She showed that young people often have the capacity to be comfortable with issues such as death that adults are not so comfortable with. A child should never be underestimated because of their age. There are different ways to engage young people to find out what their views are, art is a good example. Participation of the child does not always have to be resource intensive.

She then went on to show two DVD presentations. The first was of a boy from the Travelling Community talking about his experience in education. Logan pointed out that when he was asked to take part in the DVD he wanted someone elseâ€™s voice to be used as he was embarrassed about how he would come across. In fact he highlighted the issues he faced perfectly through his own voice. The second DVD presentation was of the Big Ballot that the Office recently carried out. 75,000 children in 500 schools took part across a broad section of the community. The ballot sought to find out what were the concerns facing children in Ireland today at a time of rapid change. Not everyone is happy with the work of the Office and one individual did bring a legal challenge against the ballot for undermining the place of the family in the Irish Constitution.

In conclusion Ombudsman Logan stressed that legislation is required to properly hear the voice of the child. People working with children can make the difference while waiting for this change.